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A tale of two FOILS

The process of filing a Freedom of Information Act request is supposed to be the democratic equivalent of getting a candy bar out of a vending machine: You ask, you get.

But too often, it can leave one feeling more like a shipwrecked sailor putting a note in a bottle and tossing it in the ocean. The only difference is that every six weeks the angry waves will cough up a series of response bottles advising the sailor that his (or her) message is still out there in the deep blue — maybe bobbing toward a distant shore, maybe not.

It's not often that one gets the opportunity for a comparison of FOIL responsiveness, but as the annual transparency observance known as Sunshine Week concludes, here's the story of how the offices of two statewide elected officials handled the same FOIL request.

The documents in question were related to the contract that secured the services of private investigator Bart Schwartz and his firm Guidepost Solutions, who were announced by Gov. Andrew Cuomo's office in late April as the people who would be mucking out the high-tech Augean Stables that are the various upstate development projects run by SUNY Polytechnic Institute.

The announcement of Schwartz's hiring coincided with the news that Cuomo's administration had been served with a subpoena by the office of now-former U.S. Attorney Preet Bharara. In September, the probe resulted in the arrests of Cuomo's former top aide Joe Percoco and ex-SUNY Poly founder Alain Kaloyeros, and six upstate development executives.

Ten weeks after the subpoena drop, the administration publicly released the contract between the Executive Chamber and Schwartz. It had an expiration date of Dec. 31.

And so, a few days after Christmas, I reached out to a Cuomo spokesman and inquired as to whether Schwartz's contract would be extended. He responded with a statement that while grammatically faultless did not answer my question.

"As previously stated, Guidepost has issued new procurement protocols that are being implemented by (Empire State Development Corp.) and other relevant agencies," he said. "Guidepost's work is concluding and we look forward to their final findings."

And so I wrote a story that led with the fact that the administration would not say whether it would extend Schwartz's contract into the new year. The next day, I learned from a source that it didn't really matter if the contract was going to be extended because the contract had never been approved by the office of state Comptroller Tom DiNapoli due to a range of concerns — including the fact that Schwartz had not been required to issue much of anything in terms of a final report.

And so I submitted identical FOIL requests to the comptroller's office and the executive chamber seeking any correspondence concerning the Schwartz contract. And the race was on.

The race was won by DiNapoli's office, which less than a week later handed over 12 pages consisting of two letters apiece from Charlotte Davis, the head of the comptroller's contracts division, and Cuomo's counsel Alphonso David. There were no redactions made to any of the letters. I wrote a story about the intermittent but months-long exchange and posted the whole set of documents on the Capitol Confidential blog.

Just before Valentine's Day, a Cuomo FOIL officer sent an email containing a letter telling me they required "additional time to complete our response" to my five-week-old request. She said they would get back to me on or before March 9 — the 20 working days allotted to FOIL recipients under the law. I wrote back and advised them that they had to be kidding me. I also alerted the Cuomo spokesman, who sighed.

More time passed.

My next missive from Cuomo's office did not come on or before March 9, though the March 13 email I received contained an attached letter that bore that date. If you were thinking the governor's FOIL office decided to celebrate the second day of Sunshine Week by handing over the materials I had asked for, you would be wrong. Instead, I got another pro forma extension letter with a promise to update me on their progress on or before April 6. I called Cuomo's spokesman to give him the news, and again he sighed.

There are only a few possibilities here. It could be the executive chamber slow-rolls virtually every FOIL request. This certainly comports with my experience and those of many of my colleagues in the Capitol press corps. Or maybe the Cuomo FOIL office is so understaffed that it takes more than 10 weeks to respond to even the most mundane and straightforward request. Either way, the governor should speed up, staff up or revoke his 2011 promise that his administration would be "the most transparent and accountable in history."

Or maybe I'm being too harsh, and those taxpayer-funded transparency elves are furiously vetting a mother lode of additional correspondence between Davis and David that the comptroller's office for some reason failed to hand over.